DAYOUB v. PENN-DEL DIRECTORY CO.

May 11, 1999

JAMES R. DAYOUB, PLAINTIFF,v.PENN-DEL DIRECTORY COMPANY, DEFENDANT.

The opinion of the court was delivered by: Reed, District Judge.

MEMORANDUM

Plaintiff James R. Dayoub ("Dayoub") brought this lawsuit
alleging that he is disabled and that his employer failed to
accommodate his disability in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Presently
before the Court is the motion of the defendant Penn-Del
Directory Company ("Penn-Del") for summary judgment (Document No.
12), the response of Dayoub thereto as well as the reply and
sur-reply of the parties. Jurisdiction is proper pursuant to
28 U.S.C. § 1331. Based upon the following analysis the motion will
be denied.

I. Procedural History

Dayoub initially brought an administrative claim of disability
discrimination with the Equal Employment Opportunity Commission
("EEOC"). Following its investigation, on March 4, 1997, the EEOC
provided Dayoub with a right to sue letter. Dayoub then brought
suit against Penn-Del and its parent corporation, Bell Atlantic
Corporation. Bell Atlantic Corporation was dismissed from this
action by agreement of the parties.

Penn-Del is in the business of selling and servicing yellow
pages advertising space in telephone books. Penn-Del hired Dayoub
as part of its fast track management program on August 31, 1992.
Dayoub was eligible for the fast track program because he had
prior sales experience, including yellow pages advertising sales
experience. As part of the program, Dayoub was placed in various
sales and training positions for a limited time to give him a
broad base of experience. Dayoub began the program in an account
executive sales training class. Although Dayoub had performance
issues relating to inappropriate behavior, Penn-Del kept him in
the program. From March 8, 1993 through June 21, 1993, Dayoub
worked as a sales coach. He was next assigned to be a personnel
and training manager, a position he held until September 1993.
Although Penn-Del asserts that Dayoub's supervisors were
concerned that Dayoub had poor interviewing skills, had
communication problems and had no concept of reporting times,
Dayoub progressed to the position of District Sales Manager in
September of 1993. As District Sales Manager, Dayoub experienced
difficulties with paperwork requirements and management duties.

In March of 1994, Dayoub began seeing Olga L. Infante, M.D., a
licensed psychiatrist. On April 6, 1994, after consultation with
Dr. Infante, Dayoub informed Penn-Del that he was leaving work on
short-term disability. As required by Penn-Del, Dayoub gave
Penn-Del a note from Dr. Infante stating that Dayoub was
suffering from depression and would be out for 8-10 weeks.
(Plaintiff's Appendix in Support of His Response in Opposition to
Defendant's Motion for Summary Judgment ("Plt.App.") at 1). On
April 12, 1994, Penn-Del received a second note from Dr. Infante
stating that Dayoub would be out for 6-8 weeks. (Id. at 2). On
May 13, 1994, Dr. Infante wrote Penn-Del another note stating
that Dayoub would be able to return to work in 4-6 weeks. (Id.
at 3). Dr. Infante diagnosed Dayoub with Attention Deficit
Disorder and depression.

Dayoub, nevertheless, contacted Raymond Veth, Director of
Corporate Personnel, and discussed returning with a reassignment
to another position. Veth in turn discussed the possibility of
assigning Dayoub a sales territory with Robert Brentari, Dayoub's
supervisor. Veth told Dayoub that before any specific job
decisions were made, he would have to speak with Dr. Infante. In
late June or early July, Veth spoke with Dr. Infante. Dr. Infante
expressed her concern that not working was contributing to
Dayoub's depression and that she thought he should and could
return to work, albeit in another position. She also described
what she thought his strengths and limitations were.

Following their conversation, Dr. Infante supplied Penn-Del
with a psychiatric update dated July 5, 1994. (Plt.App. at 5). In
the update, Dr. Infante states that it would be "safe and
therapeutic" for Dayoub to return to work with some limitations.
(Id.). Specifically, Dr. Infante stated that Dayoub would have
difficulty with "multi-purpose roles where he is responsible for
handling changes and supervising others." (Id.). Dr. Infante
further suggested that Dayoub was "best suited to perform duties
that he once mastered [and that] had a repetitive theme to them."
(Id.). Dr. Infante also stated that Dayoub was aware that he
would not be successful in a supervisory position and recommended
that he be put in an instructing or training position.

Subsequently, Dayoub attempted to discuss his return to work
with Veth. At that time, he was referred to John Boylan, Manager
of Benefits. Boylan advised Dayoub that there was no opportunity
for reassignment and that he could only come back to Penn-Del in
his prior position of District Sales Manager. According to
Dayoub, Boylan said the decision was final and that Dayoub needed
clearance from his doctor before he could return to his old
position of District Sales Manager. An internal phone call record
reveals that prior to receiving the note from Dr. Infante
clearing Dayoub to return to work, albeit in a different
position, Boylan told the office with which Dayoub was
communicating that "there is no position available for Jim. He
must return to his DSM job at full capacity." (Def.App. at 57).

On August 5, 1994, Dr. Infante wrote a note stating that
despite improvement in some areas, Dayoub was still experiencing
significant impairment in other areas such as memory functioning.
(Plt.App. at 6). Dr. Infante stated that Dayoub is still unable
to perform his previous job and would not be able to return to
work for at least 4-6 weeks. On September 19, 1994 Dr. Infante
wrote a final note stating that Dayoub would be able to return to
work on October 17, 1994 but that "at this time he cannot return
to his Sales and Sales Management position." (Id. at 7).

On September 23, 1994, Brentari called Dayoub to discuss the
latest note from Dr. Infante. Accordingly to Dayoub, Brentari
inquired whether Dayoub would be returning to his former position
of District Sales Manager. Dayoub told him that he was uncertain
and could not guaranty the October 17th return date. Brentari
then explained that Dayoub had become eligible for long term
disability on September 5, 1994, and that he could not hold
Dayoub's position as District Sales Manager open indefinitely.
Brentari then informed Dayoub that he was terminated. According
to ...

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